Supreme Court gives judges more leeway in crack-cocaine sentencing

Federal judges have discretion to sentence individuals to prison terms that substantially depart from the punishment range established in the federal sentencing guidelines.

In a pair of 7-to-2 decisions announced Monday, the US Supreme Court offered important guidance to federal judges who have been struggling to mete out sentences after the high court's 2005 ruling that said the sentencing guidelines established by Congress are no longer mandatory, but are now only advisory.

How much sentencing flexibility does the Supreme Court say such advisory guidelines permit?

In one, the federal judge had rejected the disparity between crack-cocaine sentences and powder-cocaine sentences. The federal appeals court said the judge lacked the discretion to do so and overturned the sentence.

In the other case, the judge issued a more lenient sentence in recognition that the defendant had turned his life around, took responsibility for his crime, and was leading a productive life. The appeals court reversed the lower sentence, saying the judge failed to offer the necessary extraordinary circumstances to justify a sentence so far below the guidelines.

The two decisions together establish a new, higher standard for appeals courts to overturn a judge's sentence. An appeals court must find that a particular sentence is unreasonable and that the sentencing judge abused his or her discretion in weighing the various factors that led to the sentence.

The touchstone of this test is that federal judges impose sentences sufficient, but not greater than necessary to accomplish the sentencing goals set by Congress.

Writing for the majority in the crack-cocaine case, Justice Ruth Bader Ginsburg noted the extensive debate – including within the Sentencing Commission itself – over the disparity between crack-cocaine sentences and powder-cocaine sentences. "Given all this," she writes, "it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence greater than necessary."

The crack-cocaine disparity has long been a source of controversy.

The sentencing guidelines boost the amount of punishment based on the quantity of drugs seized. Although crack cocaine and powder cocaine are the same drug (but in different forms), the sentencing guidelines award sentences three to six times longer for crack offenses than for powder-cocaine offenses.

Under the guidelines, possession of five grams of crack triggers a five-year mandatory sentence, while it would take 100 times that amount – 500 grams – to trigger a similar five-year mandatory sentence for possession of powder cocaine.

Legal analysts say the guidelines were written in the 1980s amid extraordinary fear and misinformation about crack cocaine. Studies have since shown that crack is no more or less dangerous than powder cocaine.

The sentencing disparity has been devastating in the African-American community, where black defendants are incarcerated for crack-related crimes at substantially higher proportions than whites.

Of those sentenced in federal court for crack-cocaine trafficking, 88 percent were African-American and only 4 percent were white, according to a 1995 study. Yet more than half of all crack users were white, according to another study.

The high-court decision comes in the case of convicted crack dealer Derrick Kimbrough. He was arrested in 2004 in Norfolk, Va., with 56 grams of crack and 92 grams of powder cocaine. Under the guidelines, Mr. Kimbrough faced a sentence of 14 to 17-1/2 years in prison for the drug portion of his case. But the guidelines were no longer mandatory. After studying the disparity issue, the judge decided to sentence Kimbrough to 10 years in prison for the drug portion of the case.

A federal appeals court panel in Richmond, Va., vacated the sentence, declaring that even though the guidelines are only advisory, a sentence so far below the guidelines range was unreasonable.

In reversing the appeals court, Justice Ginsburg said, "The district court properly homed in on the particular circumstances of Kimbrough's case and accorded weight to the Sentencing Commission's consistent and emphatic position that the crack/powder disparity is at odds with [the federal sentencing law]."

The second decision was written by Justice John Paul Stevens. It involves the case of Brian Gall, an Iowa construction company owner, who pleaded guilty to helping distribute 10,000 tablets of the illegal drug Ecstasy while he was a 21-year-old college student.

The federal judge in his case rejected the suggested guidelines sentence of three years in prison and instead sentenced Mr. Gall to three years' probation.

Gall had pleaded guilty to the drug crime and cooperated with federal agents investigating the matter. The judge noted that Gall's participation in the conspiracy lasted only a period of months when he was relatively young, and that in the four years since the end of his drug dealing, he had turned his life around by no longer using drugs or alcohol, graduating from college, and starting and running his own successful construction business.

When confronted by federal agents years later about his alleged drug dealing as a student, Gall accepted responsibility and expressed remorse.

The judge's sentence was overturned by a federal appeals court in St. Louis. The appeals court said probation was an unreasonable punishment in light of the seriousness of Gall's prior drug dealing. A sentencing judge must show extraordinary circumstances to justify such a sentence, the court said.

In reversing the appeals court, Justice Stevens writes that federal judges must consider the sentencing guidelines and must explain and justify the appropriateness of an unusually lenient or harsh sentence. "An appellate court may take the degree of variance into account and consider the extent of deviation from the guidelines, but it may not require 'extraordinary' circumstances or employ a rigid mathematical formula," he says.

Stevens wrote that the appeals court "failed to give due deference to the district court's reasoned and reasonable sentencing decision."

Two justices dissented in both decisions. Justice Clarence Thomas said he would uphold the appeals courts because their decisions were aimed at upholding the sentencing goals of Congress. The other dissenting justice is Samuel Alito.